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					      Case 2:05-cv-04173-FJG       Document 195       Filed 06/26/2006     Page 1 of 16

                      WESTERN DISTRICT OF MISSOURI
                            CENTRAL DIVISION

MICHAEL ANTHONY TAYLOR                          )
                                    Plaintiff,  )
vs.                                             )       No. 05-4173-CV-C-FJG
LARRY CRAWFORD, et al.,                         )
                                    Defendants. )

                                     I. BACKGROUND
       Plaintiff filed his Complaint on June 3, 2005, and an amended complaint on

September 12, 2005 (Doc. #36)1. In his First Amended Complaint plaintiff sought a

declaratory judgment that Missouri’s method of execution by lethal injection violates the

Eighth, Thirteenth and Fourteenth Amendments because it would inflict on him cruel

and unusual punishment, would deprive him of life, liberty or property without due

process of law and would inflict upon him a badge of slavery, in that the three drug

sequence using a procedure whereby the drugs are administered through the femoral

artery creates a foreseeable risk of the infliction of gratuitous pain. Plaintiff also argued

that the physician’s role in the execution violated medical ethics. On December 28,

2005, the Court issued an Order denying defendant’s Motion to Dismiss and ruling that

the case presented factual issues which would likely be resolved by either a motion for

        Richard Clay was previously granted leave to intervene in this action. On
January 30, 2006, the Court orally granted Mr. Clay’s Motion to Dismiss this action as to
him without prejudice. Reginald Clemons also had a pending Motion for Leave to
Intervene in this action. He has now also moved to withdraw from this action.
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summary judgment or through a hearing (Doc. # 54). On January 3, 2006, the

defendants notified the Court that the Supreme Court of Missouri had set plaintiff’s

execution date for February 1, 2006. On January 18, 2006, plaintiff filed an Application

for a Court Order requesting that the Court issue an Order directing that Taylor not be

executed until further order of the Court to be issued within a reasonable time after a

hearing on the merits which was scheduled for February 21, 2006. On January 19,

2006, Judge Scott Wright issued an Order staying the execution until the Court could

conduct the hearing (Doc. # 62). The same day, defendants appealed Judge Wright’s

ruling to the Eighth Circuit. On January 29, 2006, the Eighth Circuit entered an Order

reversing and vacating Judge Wright’s January 19, 2006 Order. The Eighth Circuit

remanded the case to the Western District and directed that the Court reassign the case

to another judge for an immediate hearing. The Eighth Circuit directed that an Order be

issued no later than 12:00 Noon on Wednesday, February 1, 2006. This case was

assigned to this Court on Monday, January 30, 2006.

      On January 30-31, 2006, this Court conducted a telephonic hearing regarding

plaintiff’s Complaint. During the telephonic hearing, the Court heard the testimony of

the following individuals: Dr. Mark Dershwitz, Dr. Jonathan I. Groner, Dr. Mark Heath

and Terry W. Moore, the Director of Adult Institutions for the Missouri Department of

Corrections. Plaintiff requested that the State produce John Doe Numbers One and Two

(the doctor and the nurse who participated in the most recent execution), but this

request was denied. Plaintiff also sought to present the testimony of Dr. Sri Melethil, a

pharmacokineticist, but he was out of town and unable to appear until the morning of

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February 1, 2006. After considering the evidence and the testimony of these

individuals, the Court determined that neither the chemicals used by the State for lethal

injection nor the procedure employed to administer these injections constituted cruel or

unusual punishment. The Court noted that while the plaintiff suggested a different

approach to lethal injection, he had not shown that the current method used by Missouri

violated the Eighth Amendment. Further the Court was not persuaded that the use of

the femoral vein for the administration of the lethal injection violated applicable

standards of the Eighth Amendment. The Court also did not find that Missouri

physicians who are involved in administering lethal injections were violating their ethical

obligations or that the procedure was violative of the Thirteenth Amendment.

       Plaintiff appealed this Court’s January 31, 2006 Order, arguing that he did not

have sufficient time to present his arguments to the Court during the two day telephonic

hearing. Plaintiff argued that this Court had abused its discretion in not allowing him to

call John Doe I and II or Dr. Melethil and also erred in denying his claims. On April 27,

2006, the Eighth Circuit remanded the case to this Court to reconvene the hearing. The

Eighth Circuit gave the parties thirty days to engage in some limited additional discovery

and then an additional thirty days within which the hearing was to be held and for this

Court to issue its Order, amending, modifying or restating the previous judgment and

certifying the same to the Eighth Circuit.

       The Court allowed plaintiff to conduct the following discovery: a Rule 34

inspection and videotaped tour of Missouri’s execution chamber, a deposition of Larry

Crawford, Director of the Missouri Department of Corrections and document requests

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which pertained to the last six executions carried out by the State of Missouri. The

document requests included any execution logs, records, autopsy reports, test results

and analyses of post-mortem/toxicology reports. The State also provided information

regarding what specialized training the physicians and nurses undergo who participate

in administration of the drugs and all documents pertaining to any fall back procedures

regarding vein access and the three drug sequence. The Court also allowed plaintiff to

submit interrogatories to John Doe Defendants I - V. After John Doe I submitted his

interrogatory responses, plaintiff again asked the Court for permission to depose him.

The Court allowed plaintiff to conduct a limited anonymous deposition of John Doe I.

This deposition was conducted at the Courthouse, with only the Court and counsel

present. On June 12 -13, 2006 this Court continued the hearing which was begun in

January 2006. During the hearing, plaintiff presented the testimony of Dr. Mark Heath,

an anesthesiologist, Dr. Stephen Johnson, an expert in central line placement and

femoral line placement and Dr. Thomas Henthorn, an expert in pharmokinetics. The

State presented the testimony of Dr. Mark Dershwitz, an anesthesiologist, Terry Moore,

Director of Adult Institutions for Department of Corrections and Larry Crawford, Director

of the Department of Corrections.

                                    II. DISCUSSION

      A. Standard

      The Eighth Amendment provides that “cruel and unusual punishment” shall not

be inflicted. It prohibits punishments that are “incompatible with the ‘evolving standards

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of decency that mark the progress of a maturing society.’” Estelle v. Gamble 429 U.S.

97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), (quoting Trop v. Dulles, 356 U.S. 86,

101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)). As to executions, it prohibits “the

unnecessary and wanton infliction of pain” as well as methods involving torture or a

lingering death. See Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49

L.Ed.2d 859 (1976). “The cruelty against which the Constitution protects a convicted

man is cruelty inherent in the method of punishment, not the necessary suffering

involved in any method employed to extinguish life humanely.” Louisiana ex rel. Francis

v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947)(emphasis

added). Additionally, as the Court noted in Campbell v. Wood, 18 F.3d 662, 687 (9th Cir.

1994), “[t]he risk of accident cannot and need not be eliminated from the execution

process in order to survive constitutional review.”

       B. Missouri’s Execution Procedure

       During the January 30-31, 2006 hearing, Terry Moore, Director of Adult

Institutions for the Missouri Department of Corrections, described what he believed was

the execution procedure used in Missouri. Mr. Moore testified that three drugs are

administered by a board certified physician. The physician first administers five grams

of sodium pentothal, also known as thiopental, which is a substance that produces

anesthesia. Thereafter, the physician administers a syringe of saline to flush the IV line.

Next, the physician administers pancuronium bromide, also referred to as pancuronium.

This drug is a paralytic agent which prevents any involuntary movement of the body.

The physician then again administers the saline solution. Finally, the third drug which is

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administered is potassium chloride, which is a drug which stops the electrical activity of

the heart. There was no dispute that if an inmate is not sufficiently anesthetized when

the potassium chloride is administered, it will cause excruciating pain as it is

administered through the inmate’s veins. The inmate, however, would be unable to

show that he was experiencing discomfort due to the paralyzing effects of the

pancuronium bromide.

       After the Eighth Circuit remanded this case, the Court allowed plaintiff to conduct

additional limited discovery. In a letter sent to the Court on May 17, 2006, plaintiff’s

counsel informed the Court that new evidence in the form of chemical dispensary logs,

which had recently been produced by the State, contradicted the State’s previous

representations regarding the amount of thiopental that is used during executions.

       In response, counsel for the State confirmed in a letter sent to the Court on May

17, 2006 that 5 grams of sodium pentothal are used:

       As plaintiff correctly points out, defendants have stated consistently that 5
       grams of sodium pentothal are used in executions in Missouri. Five grams
       are in fact used. The reference to the 2.5 grams noted in the drug log is
       not correct. The doctor and the nurse who have prepared the drugs for
       the last six executions and for plaintiff’s stayed execution confirm that 5
       grams has been used in the last six executions and was prepared for
       plaintiff’s stayed execution. (Defendants are attempting to run down the
       source of the error in the record, and continue to do so.)

       However, the next day on May 18, 2006, counsel for the State sent the Court

another letter in which they acknowledge that a mistake had in fact been made

regarding the representations as to the amount of thiopental administered. The letter

stated in part:

       Upon further review, defendants have just determined this afternoon,

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      contrary to previous representations, that 2.5 grams of sodium pentothal
      was prepared and used at the last execution (not 5 grams) and that 2.5
      grams was prepared for use at the execution of plaintiff (which was stayed
      before the femoral IV was inserted). Defendants and their counsel
      apologize to the Court and the parties for providing incorrect information.

(Doc. # 121).

      Upon learning of this information, the Court submitted a set of interrogatories to

John Doe I 2 to answer. The Court inquired whether the lethal injection protocol was

codified in any publication, policy statement or state regulation. John Doe I responded

that he was not aware of the protocol being written down in any form. He stated that it

was his understanding at the time of Mr. Gray’s execution that he had the independent

authority to change the dose based on his medical judgment. He stated that this

understanding was based on past contacts with predecessors of the current Director of

the Department of Corrections. When the Court asked how many times the protocol

has been modified since it was put into place, John Doe I responded:

      John Doe I can recall one instance when three syringes of potassium
      chloride were used based on the obesity of the offender. John Doe I can
      recall one instance when the IV was inserted in the offender’s neck
      instead of his femoral vein based on the damage to both of his femoral
      veins from drug abuse. John Doe I is aware of one instance when a
      peripheral IV was used because John Doe I was unable to attend the
      execution. For the execution of Mr. Gray and the preparation for the
      execution of Mr. Taylor, John Doe I determined to use 2.5 grams of
      sodium pentothal. This determination occurred because of difficulty in
      dissolving powder, obtained from a new supplier, containing more than 2.5
      grams in the liquid that could be accommodated in a syringe. The rate of
      infusion and the concentration of the dose ensured that 2.5 grams was
      more than sufficient to make the offender unconscious before
      administering the remaining drugs. Further, with regard to Mr. Taylor,
      John Doe I was aware that the dosage used in the execution of Mr. Gray
      was adequate.
(Response to Interrogatory No. 5, Doc. # 152).

       Defendants have disclosed that John Doe I is the physician that mixes the drugs
used during the executions.

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      When asked who was consulted before the dosage of thiopental was decreased,

he responded that no one was consulted because he thought it was within the

acceptable parameters to accomplish the goal. When questioned about his medical

background, John Doe stated that although he was a board certified surgeon, he is not

an anesthesiologist. The Court also allowed plaintiff to conduct an anonymous

deposition of John Doe I on June 5, 2006.

      When he was asked whether any part of the execution procedure was written

down, John Doe I responded as follows:

A. I have never seen it. If it was, it would have been written on my recommendation.
Q. I see. Do you have any idea why it might not be written down?
A. I’m sure it’s written down somewhere. If they’re checking the logs of all the drugs
every time we use them and recording expiration dates and number of sheets and
needles that we use, I’m certain they have it written down somewhere.
Q. But in terms of the aspects of the procedure that you’re responsible for, that you
perform, those aren’t written down, to your knowledge?
A. It might be written in there, but it would be written on by somebody observing what I
was doing and using their interpretation. So if there was a written procedure that they
had done I would – you know, I’m curious to see what they think I’m doing, but I don’t
know that they write down the individual details of how I insert an 18-gauge rather than
a 22-gauge or a 14-gauge needle.
Q. I see. So people might write things down as you’re doing them, but there’s no guide
that you follow as you’re doing it?
A. Absolutely not.
Q. So you just rely on your memory?
A. Yes.
Q. And your judgment?
A. Yes.

(John Doe Depo. pp. 69-70)

      During his deposition, John Doe I described how he has had to devise an

improvised procedure with regard to mixing the correct dosage of thiopental:

Q.    And could you take me step-by-step through that, your improvised process?
A.    I’d have to see the containers because I cannot at the present time remember
      whether they have glass or – they are actually just two straight-walled glass
      bottles. One has powder in the bottom, one has liquid in the bottom, and they are
      designed to lock together and mix. So, I have to stick a needle through this

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       plastic and inject my own diluents which I know will give me no more than 50 cc’s
       for the final product, which is what I’m aiming for for the final injection.
               We have encountered problems trying to mix more than three or four
       grams using this method, mainly because of an inert substance possibly put in
       by the manufacturer to prevent mis-mixing, which I know several drug companies
       will do. So right now the last time I saw and talked to the Director on each of
       these occasions saying we either need to change what we say we’re dosing or
       we will have to go back to the original five-gram bottle that was available when
       we instituted this procedure. So right now we’re still improvising. And he’s also
       having me researching an alternate drug if it comes to that.

(John Doe Depo. pp. 9-10).

       When John Doe I was asked why he did not initially recall why he prepared a

smaller dose of thiopental, he responded:

A.     . . . But I am dyslexic and so I can recall in the operating room specific facts and
       details of operation and function perfectly, but in terms of copying one line to
       another or trying to simply copy a phone number or account number I will
       sometimes transpose numbers even when I’m staring at the two numbers. So,
       it’s not unusual for me to make mistakes. . . . But I am dyslexic and that is the
       reason why there are inconsistencies in my testimony. That’s why there are
       inconsistencies in what I call drugs. I can make these mistakes, but it’s not
       medically crucial in the type of work I do as a surgeon.

(John Doe Depo. pp. 24-25)(emphasis added).

       In describing how the drugs are administered, John Doe I stated that, “ . . .the

people who do the injections are nonmedical and they’re in the dark so they have a

small flashlight that they’re able to quickly identify the syringes, make the appropriate

connections and injections, disconnect, clamp the tube, and changing the number of

syringes or the order of syringes was an unnecessary risk.” (John Doe Depo. p. 31).

       When questioned about whether he monitors anesthetic depth, John Doe I

testified as follows:

Q. Did you monitor Mr. Gray’s anesthetic depth during the execution?
A. I monitor – the only thing that can be monitored is facial expression, and you can
judge when the effect of the drug is accomplished, and that can be seen from across a
room through a window. And when that effect occurs then I know the inmate is
unconscious. . . .

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Q. So you said that you can see that – an inmate’s facial expression from where you
A. Yes. That’s the only thing any anesthesiologist uses in the course of inducing a
person when pentothal was still used, was you simply started injecting, look at the face,
and again, it’s difficult to describe, but I can tell instantly when the pentothal has taken
effect. And in medical practice the instant the pentothal has taken effect they gave
absolutely no more because then they move on to the actual anesthesia which has to
be started before the pentothal wears off.

(John Doe Depo. pp. 41-42).

       When he was asked whether he had any discussions with Director Crawford

about the scope of his authority, John Doe I stated:

A. Oh, yes. We talk – I talk in his office and at the time of the execution. In fact, he’s
the only director I have actually gone over to his office for other reasons and visited
about this. And again, he has no background in corrections and he has no background
in medicine, so the other corrections officers had long backgrounds in corrections so
they were aware of what we were doing and why we were doing it. Since he has no
background in either field, he reiterated that he’s totally dependent on me advising him
what could and should and will be done, and he will back up – if I think there’s a change
that needs to be made, he wants me to quickly inform him so he can make the
appropriate changes.
Q. I see. So, it’s your understanding that if you thought a change to the execution
procedure needed to be made you would – Director Crawford would defer to your
A. Absolutely.

(John Doe Depo. pp. 63-64).

       C. Is Missouri’s Execution Procedure Constitutional?

       In Morales v. Hickman, 415 F.Supp.2d 1037 (N.D.Cal. 2006), aff’d, 438 F.3d 926

(9th Cir. 2006), cert. denied,126 S.Ct.1314,163 L.Ed.2d 1148 (2006), the Court stated:

            The Eighth Amendment prohibits punishments that are incompatible
       with the evolving standards of decency that mark the progress of a
       maturing society. . . . Executions that involve the unnecessary and wanton
       infliction of pain . . . or that involve torture or a lingering death . . . are not
       permitted. When analyzing a particular method of execution or the
       implementation thereof, it is appropriate to focus on the objective evidence
       of the pain involved. . . .In this case, the Court must determine whether
       Plaintiff is subject to an unnecessary risk of unconstitutional pain or
       suffering such that his execution by lethal injection under California’s
       protocol must be restrained.

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Id. at 1039 (internal citations and quotations omitted)(emphasis added). In that case the

Court focused on the narrow issue of “whether or not there is a reasonable possibility

that Plaintiff will be conscious when he is injected with pancuronium bromide or

potassium chloride, and, if so, how the risk of such an occurrence may be avoided.” Id.

at 1040. This is precisely the same question which this Court must address.

       After learning more about how executions are carried out in Missouri, through

the interrogatories submitted to the John Doe defendants, reviewing the chemical

dispensary logs, reviewing the videotape of the execution chamber and listening to the

testimony of John Doe I, and to the testimony of the other expert witnesses at the June

12-13, 2006 hearing, it is apparent that there are numerous problems. For example,

there is no written protocol which describes which drugs will be administered, in what

amounts and defines how they will be administered. John Doe I testified that he came

up with the current protocol. John Doe I also testified that he felt that he had the

authority to change or modify the formula as he saw fit. It is apparent that he has

changed and modified the protocol on several occasions in the past. He has reduced

the amount of thiopental given from 5.0 grams to 2.5 grams and has also changed the

location on the inmate’s body where the drugs were administered. It is obvious that the

protocol as it currently exists is not carried out consistently and is subject to change at a

moment’s notice.

       The Court is also concerned that John Doe I possesses total discretion for the

execution protocol. Currently, there are no checks and balances or oversight, either

before, during or after the lethal injection occurs. No one monitors the changes or

modifications that John Doe I makes. John Doe I even testified that the Director of the

Department of Corrections, Mr. Crawford, has no medical or corrections background,

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and that he is “totally dependent on me advising him.” (John Doe Depo. p. 64).

       In addition to the fact that there is no oversight and the responsibility for making

changes or adjustments is completely vested in one individual, the Court also has

concerns about John Doe I’s qualifications. John Doe I readily admitted that he is

dyslexic and that he has difficulty with numbers and oftentimes transposes numbers.

John Doe I testified “it’s not unusual for me to make mistakes. . . . But I am dyslexic and

that is the reason why there are inconsistencies in my testimony. That’s why there are

inconsistencies in what I call drugs. I can make these mistakes, but it’s not medically

crucial in the type of work I do as a surgeon.” (John Doe Depo. p. 25). The Court

disagrees and is gravely concerned that a physician who is solely responsible for

correctly mixing the drugs which will be responsible for humanely ending the life of

condemned inmates has a condition which causes him confusion with regard to

numbers. As the Court has learned, the process of mixing the three different drugs and

knowing the correct amount of the drugs to dissolve in the correct amount of solution

involves precise measurements and the ability to use, decipher, and not confuse

numbers. Although John Doe I does not feel this is crucial in the type of work he does

as a surgeon, it is critical when one is mixing and dissolving chemicals for a lethal


       In addition, John Doe I testified that although he is not an anesthesiologist, he

monitors the anesthetic depth of an inmate by observing the inmate’s facial expression.

However, as can be seen from the videotape of the execution chamber, when the

inmate is lying on the gurney in the execution room, the inmate is facing away from the

Operations room where John Doe I is located. Additionally, it is dark in the Operations

room and there are blinds on the window which are partially closed and obstruct the

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view. This would make it almost impossible for John Doe I to observe the inmate’s

facial expression. This leads the Court to conclude that there is little or no monitoring of

the inmate to ensure that he has received an adequate dose of anesthesia before the

other two chemicals are administered.

       All of these concerns lead the Court to conclude that Missouri’s lethal injection

procedure subjects condemned inmates to an unnecessary risk that they will be subject

to unconstitutional pain and suffering when the lethal injection drugs are administered.

       D. Revisions to the Execution Protocol

       Having determined that Missouri’s current method of administering lethal

injections subjects condemned inmates to an unacceptable risk of suffering

unconstitutional pain and suffering, the Court concludes that it is within its equitable

powers to fashion a remedy that “preserves both the State’s interest in proceeding with

Plaintiff’s execution and Plaintiff’s constitutional right not to be subject to an undue risk

of extreme pain.” Morales, 415 F.Supp.2d at 1046. Director Crawford testified at the

hearing that the Department of Corrections is in the process of developing a directive

which would establish a protocol for administering lethal injections. However, from his

testimony, it was apparent that the directive would not encompass all of the attributes

which the Court finds are necessary to ensure that lethal injections are carried out

humanely. Recently other courts have also faced this challenge and have modified

execution procedures in those states. See e.g. Brown v. Beck, No. 5:06-CT-3018-H,

(E.D.N.C. April 7, 2006)(Doc. No. 32) and Morales, 415 F.Supp.2d at 1046.

       Accordingly, the Court hereby AMENDS its previous order of January 31, 2006

and ORDERS the Department of Corrections for the State of Missouri to prepare a

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written protocol for the implementation of lethal injections which incorporates the

following provisions:

1. Personnel

   A board certified anesthesiologist shall be responsible for the mixing of all drugs

which are used in the lethal injection process. If the anesthesiologist does not actually

administer the drugs through the IV, he or she shall directly observe those individuals

who do so. Additionally, the Operations Room shall be sufficiently lighted so that the

corrections personnel can see which drugs are being administered.

2. Lethal Injection Drugs & Method of Administration

   The level of thiopental administered shall not be less than 5 grams. Pancuronium

Bromide and Potassium Chloride will not be administered until the anesthesiologist

certifies that the inmate has achieved sufficient anesthetic depth so that the inmate will

not feel any undue pain when the Potassium Chloride is injected. The State in

conjunction with the anesthesiologist will have discretion to determine the most

appropriate location on the inmate’s body to inject the drugs. The State shall specify in

the protocol how the anesthesiologist will certify that the inmate has achieved the

appropriate anesthetic depth.

3. Monitoring

   The State will put in place procedures which will allow the anesthesiologist to

adequately monitor the anesthetic depth of the inmate. This may require the State to

purchase additional equipment in order to adequately monitor anesthetic depth. The

State should also consider repositioning the gurney so that the inmates’s face will be

visible to the anesthesiologist, using a mirror, or even allowing the anesthesiologist to

be present in the room with the inmate when the drugs are injected.

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4. Contingency Plan

    The State’s protocol shall also contain a contingency plan in case problems develop

during the execution procedure.

5. Auditing Process

       The Department of Corrections shall put in place an auditing process which will

ensure that the individuals involved in the lethal injection process are correctly following

the protocol, including administering the correct dosages of the medication, in the

proper order. The Court contemplates that the State will consult with a board certified

anesthesiologist in designing the auditing process.

6. Changes to the Lethal Injection Procedure

       After approval by the Court, no further changes shall be made to the lethal

injection protocol without seeking the prior approval of this Court. This Order

contemplates consultation with a board certified anesthesiologist in arriving at a

proposed written protocol. The Court will retain jurisdiction over the State's

implementation of the lethal injection protocol for the next six executions or until the

Court is satisfied that the protocol is being administered in a consistent fashion. The

Department of Corrections shall submit its revised lethal execution protocol to this Court

for review and approval on or before July 15, 2006. All executions in the State of

Missouri are hereby STAYED pending approval of the protocol.

                                    III. CONCLUSION

       For the reasons stated above, the Court hereby AMENDS its January 31, 2006

Order and in accordance with the April 27, 2006 Order of the Eighth Circuit, this Court

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hereby CERTIFIES this Order to the Eighth Circuit for its review and consideration.

Date: June 26, 2006                             S/ FERNANDO J. GAITAN, JR.
Kansas City, Missouri                           Fernando J. Gaitan, Jr.
                                                United States District Judge


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